JAGANNATH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision is directed against the judgment of the learned Sessions Judge Bhilwara dated 7 1. 81. whereby the petitioner's appeal was partly allowed and his conviction under Sec. 4/9 of the Opium Act was main-tamed. However, his substantive sentence was reduced from 6 months to 3 months rigorous imprisonment and sentence of fine was maintained. The petitioner was convicted by the Judicial Magistrate, No. 2, Bhilwara by judgment dated 4 2 80 and sentenced to 6 months' rigorous imprisonment and to pay a fine of Rs 500/-in default of payment of fine to further under go 1-1/2 months' R. I.

(2.) AFTER hearing the learned counsel for the parties, I am of the opinion that the recovery of he opium from the possession of the petitioner is proved from statements of P. W 1 Badusmgh, ASI, P. W. 4 Sabirkhan, SI, and P. W 8 Bird-lal, Constable. The two independent witnesses viz. , P. W. 2 Roopa and P. W. 3 Pyara have turned hostile and they have not supported the prosecution case There are no reasons to dis-believe the testimony of P. W 1 Badusingh PW 4 Sabirkhan and P. W. 8 Birdilal But the question that arises for consideration in this revision is as to whether the substance recovered from the possession of the accused was opium. There is no ev,dence that at the time of seizure any one tested the substance recovered from possession of the accused and it gave smell of opium But the prosecution has sent two samples for Chemical Examination; one sample was sent to the Forensic Science Laboratory and other sample was sent to the Chemical Assistant, Government Opium and Alcholic Works Undertakings, Neemach (MP ). The two reports are Ex. p/6 and Ex. P/7. The question as to whether these reports re!ate to the cases of the petitioner. Ex. P/7, no doubt mentions case No. 78/7-8 74 The case number mentioned in Ex. P/7 is undoubtedly related to the case of the petitioner, in which recovery was effected as would be evident from the F. I. R No 78/74 of P. S. Hamirgarh. but a perusal of the report, shows that the sample was only of 17 grams whereas the prosecution case is that it was of 30 grams This discrepancy has not been explained by the prosecution, how 13 grams of the sample had evaporated. Unless this discrepancy is explained, for recording the convi-tion, the report Ex P/7 cannot be pressed into service. The inference may be drawn that the sample was tempared with else the weight of the sample would not have reduced to 7 grams. So far as the report Ex P/6 is in concerned, it does not make reference to the case number of the P. S. Hamirgarh nor the forwarding letter of the District Opium Officer has been produced. Ex. P/6 does make mention the name of the petitioner and other particulars but it has reference to the District Opium Officer, Bhilwara's letter dated 28. 8. 74. It does not make reference of the case number and besides that, the letter also does not make reference regarding the weight of the sample. Merely because, the name of the accused appears in Ex. P/6, it cannot be taken that it relates to case No. 78/ 7. 8. 78 of PS. Hamirgarh. The complete linking evidence have not been produced together with the letters of the forwarding officer. The petitioner, therefore, entitled to the benefit of doubt.